William Neukom, Microsoft Corp.s outgoing general counsel, has marshaled the software company through many legal storms, always sticking to his guns and adhering to the tenets of what he calls "old-fashioned lawyering." Neukom has been heading up Microsofts legal affairs for more than 20 years and will be leaving the company this summer after the current court hearing in Washington is completed.
The media-wary Neukom took the rare opportunity to sit down with eWEEK Senior Writer Darryl K. Taft for an on-the-record interview. While Neukom would not talk about such issues as the ongoing cases on the record or about sitting judges, he gave insight into Microsofts legal strategies and what makes the company tick from a legal perspective.
eWEEK:After the IBM antitrust case, [IBM] seemed to be extra cautious. In court, you guys have talked about the training thats going on to get the developers up to speed on antitrust issues. Do you see that as hampering innovation in any way?
Neukom:I think not fundamentally. Theres a challenge there. We are going to have to continue to devote resources to compliance with the decree. And to smart education and training of people to be sure that we do everything we can to avoid having these kinds of controversies in the future. But management of the company is very clear about taking our legal advice but maintaining a technology culture and not getting overly distracted—paying attention to, being compliant with the spirit and the letter of whatever decrees come into our lives, but not getting distracted from the first job of the company, and that is to create technology.
During the darkest days of this controversy, during the dark days of the some of the Apple [Computer Inc.] litigation when there were real threats that might have required us to take Windows off the market altogether, I think management was clear that they had to delegate that responsibility to law and corporate affairs and not take their eye off the ball.
eWEEK:Of all the cases Microsoft has had to engage in, which one was the biggest challenge?
Neukom:I guess youd say this [ongoing antitrust case] in the liability phase was. But at the time we were defending the Apple litigation, we were a smaller company. This was back in the mid-80s. The industry was even younger, and the stakes relative to who we were, were huge, because Apple was seeking to have us enjoined from continuing to improve and market Windows. And when you think of what Windows meant to Microsoft in the mid-80s, you realize what a jugular threat that was. And it was at a time when there werent very many cases that had sort of clarified how the law of copyright would apply to computer software.
So we were in a newer area of the law in some ways. Theres aspects of this case that involve, obviously, that are somewhat novel in terms of how does the Sherman Act [antitrust statute] apply to the technology business. But in some ways there was more pioneering involved in [the Apple] one because courts just werent as familiar with computer software. And we were gratified to find that in the course of taking the time to explain the technology and apply pretty conventional copyright law analysis to the facts, that both the District Court judge and then the Ninth Circuit by unanimous affirmation of the district judge, that we were fully vindicated.
eWEEK:It seems like all of a sudden youve got these restraints that you have to consider.
Neukom: No question, its a part of our docket of responsibilities. Not just complying, but also being sure that we do whatever we can to avoid getting into a controversy. We cant control that. Lawyers always tell their clients: "I cant tell you you wont be investigated or you wont be sued. What I can tell you is that as I read the law and give you this advice, at the end of an investigation or litigation you should not be held liable."